San Diego Stereotypers' Union No. 82

National Labor Relations Board - Board Decisions

Feb 15, 1973

201 N.L.R.B. 893 (N.L.R.B. 1973)

SAN DIEGO STEREOTYPERS' UNION NO. 82
San Diego Stereotypers ' Union No. 82 , affiliated with
the International Stereotypers and Electrotypers
Union of North America and Union-Tribune Pub-
lishing Company and San Diego Typographical
Union No. 221 , affiliated with the International
Typographical Union . Case 21-CD-316
February 15, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Union-Tribune Publishing
Company, herein called the Employer, alleging that
San Diego Steretotypers' Union No. 82, affiliated
with the International Stereotypers and Electrotypers
Union of North America, herein called Stereotypers,
has violated Section 8(b)(4)(D) of the Act. Pursuant
to notice, a hearing was held in San Diego,
California, on various dates from July 11, 1972, to
October 2, 1972, before Hearing Officer Michael A.
De Grace. All parties appeared at the hearing, and
were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. Thereafter, the
Employer, the Stereotypers, and San Diego Typo-
graphical Union No. 221, affiliated with the Interna-
tional Typographical Union, herein called the Ty-
pographers, filed briefs in support of their respective
positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.
Upon the entire record in this case, including the
briefs, the Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is engaged in the printing, publish-
ing, and distribution of a daily newspaper at its plant
in San Diego, California. During the past 12-month
period, the Employer had a gross volume of business
in excess of $200,000, and, during that same period
of time, it received revenues in excess of $50,000
from nationally advertised products.
The parties stipulated, and we find, that the
1 All dates refer to 1972, unless otherwise indicated.
893
Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Stereotypers and the Typographers are labor organi-
zations within the meaning of Section 2(5) of the Act.
Ill. THE DISPUTE
A. Background and Facts of the Dispute
In August 1971 the Employer announced plans to
move its publishing facility from downtown San
Diego to Mission Valley, another location within the
city limits of San Diego. The plans included
changing the production process from letterpress to
offset, and the target date for completion of the new
facility was the summer of 1973. During the next 3
months, the Employer discussed this matter with the
Stereotypers, with which it has a current contract
covering the employees in the Stereotype Depart-
ment, and with the Typographers, with which it has a
current contract covering the employees in the
composing room.
On December 7, 1971, the Employer executed a
supplemental agreement with the Stereotypers cover-
ing the new offset printing process, under which the
Stereotypers were assigned the work of making the
offset plates, and all work relating to the camera for
making negatives for the offset plates, as well as
screens, reverses, and Veloxes. On March 23, 1972,1
the Typographers orally protested the proposed work
assignment , and by letter under date of March 29,
the Typographers notified the Employer that it was
initiating grievance-arbitration procedure under its
collective-bargaining agreement with the Employer.
The Employer thereupon advised the Typographers
that arbitration would avail nothing if the Stereotyp-
ers did not participate in such proceeding. On April
18, the Employer suggested that the Typographers
submit a list of arbitrators, and in response thereto,
the Typographers, on April 22, transmitted a list of
six arbitrators.
On April 24, the Stereotypers advised the Employer
that in the event the Company and the Typographers
proceeded to arbitration and an award were rendered
that called for the change of the assignment of the
work to the Typographers, the Stereotypers would
not consider such an arbitration award binding on it.
Furthermore, the Stereotypers added, it "will take
economic action, including a strike, picketing and
boycotting, in the event the Union-Tribune attempts
201 NLRB No. 126
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to comply with any arbitration award that calls for a
change of assignment of work." On April 26, the
Employer informed the Typographers that it would
accept Professor Edgar A. Jones, of the University of
California School of Law, as the arbitrator, but that
without the Stereotypers being a party to the
arbitration, thus making it a trilateral arbitration, the
arbitrator could not resolve the jurisdiction issue.
The Employer further indicated that it viewed the
threats of the Stereotypers to be a violation of the
National Labor Relations Act, and accordingly, that
it intended to file charges with the Board. On April
28, the Employer filed 8(b)(4)(D) charges against the
Stereotypers, citing the threats contained in the
Stereotypers April 24 letter, referred to above.
On May 12, the Typographers advised Professor
Jones that he had been jointly selected as the
arbitrator and that he should employ the trilateral
arbitration technique, and, to that end, it supplied
the address of the Stereotypers Union. On May 17,
Professor Jones extended an invitation to the
Stereotypers to participate as a party in the arbitra-
tion, and added that if the Stereotypers declined to
do so, he would proceed to bilateral arbitration and
admit into evidence the Stereotypers contract and
any other pertinent evidence. On May 18, the
Stereotypers advised Professor Jones that it would
not participate in the arbitration proceeding, since
the Stereotypers had its own contract with the
Employer and there was no issue to arbitrate under
its contract. On May 22, the Acting Regional
Director for Region 21 issued a notice of 10(k)
hearing.
On July 5, the Typographers filed a petition to
compel arbitration and joinder by the Stereotypers
with the United States District Court for the
Southern District of California. On July 11, the
instant 10(k) hearing commenced. The district court,
in a memorandum order dated August 1, denied the
Typographers petition to compel trilateral arbitra-
tion. The court noted that while the contracts of both
the Stereotypers and the Typographers provided for
arbitration, the Stereotypers contract provided for
the rules of the American Arbitration Association to
prevail, while the Typographers contract provided
for the rules of the Federal Mediation and Concilia-
tion Service to prevail. Under these circumstances,
the court commented, the "variance" is fatal, and
since the court could not rewrite the contractual
terms, a "proper record" was not presented upon
which trilateral arbitration could be compelled. The
record does not indicate that an appeal has been
taken from the district court's decision, and it
2 It should be noted that previously the Employer subcontracted to the J
& L Graphics Company the engravings , as well as the screens , reverses, and
otherwise appears that the arbitration proceeding is
still pending before the arbitrator.
B. The Work in Dispute
The work in dispute covers all work relating to the
camera for making negatives for the offset plates,
screens, reverses , and Veloxes.2
C. The Contentions of the Parties
The Employer contends that the Board should
confirm its assignment of the disputed work to the
employees represented by the Stereotypers, relying
on such factors as its supplemental contract with
Stereotypers covering the disputed work, which
reflects its personal preference ; the economy and
efficiency of operations which would result from this
assignment ; and the significant adverse economic
impact upon the Stereotypers should the assignment
of the work to it not be sustained. The Stereotypers
takes a position substantially the same as that of the
Employer. The Typographers argues that the "sup-
posed threat" of the Stereotypers does not give rise to
a jurisdictional dispute cognizable by the Board and,
in the alternative , states that the Board should defer
to the decision of the arbitrator in the pending
arbitration. Moreover, the Typographers adds that in
the event the Board determines that an affirmative
award of the disputed work should be made, the
employees represented by the Typographers should
be given the work assignment on the basis of the
relevant factors.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied ( 1) that there is reasonable cause
to believe that Section 8 (b)(4XD) of the Act has been
violated , and (2) that the parties have not agreed on a
method for voluntary adjustment of the dispute.
As to ( 1), the record herein shows that on April 24,
1972, the Stereotypers , to whom the Employer
assigned the disputed work , advised the Employer
that in the event the Employer and the Typographers
proceeded to arbitration , and the arbitrator rendered
an award calling for a change in the work assignment
to the Typographers , the Stereotypers would take
economic action, including a strike , picketing, and
boycott , if the Employer attempted to comply with
the arbitration . This arbitration proceeding, as the
Typographers concedes , is still pending before the
arbitrator . In view of this express threat by the
Stereotypers , we find that there is reasonable cause
Veloxes , necessary to produce the newspaper This subcontract will cease
when the new offset process becomes operational.
SAN DIEGO STEREOTYPERS' UNION NO. 82 895
to believe that a violation of Section 8(b)(4)(D) has
occurred.3
With respect to (2) above, we find no merit in the
Typographers argument that the Board should defer
to the arbitrator's decision. Section 14 of the
Employer's current contract with the Typographers
provides for a joint standing committee for arbitra-
tion of disputes arising under the contract, to be
composed of two members each from the Company
and the Union, with one member to be selected
jointly. It is further provided that in the event the
committee cannot agree on a fifth member, then the
Federal Mediation and Conciliation Service shall be
requested to supply an identical list of 10 arbitrators
to both parties, and if the arbitrator selected is a
member of the Federal Mediation and Conciliation
Service, then the arbitration shall be under the
procedures of that service. On the other hand, section
5 of the Employer's current contract with the
Stereotypers provides for a special standing commit-
tee to resolve arbitration of disputes arising under the
contract, to be composed of two members each from
the Company and the Union, with one member to be
jointly selected. It is further provided that in the
event the special standing committee is unable to
agree on the selection of a fifth member, then the
parties shall use the rules of the American Arbitra-
tion Association for the selection of such fifth
member. The record, as noted heretofore, reflects
that the Stereotypers has declined to participate in
the arbitration proceeding initiated by the Typogra-
phers under its contract with the Employer, and that
the Typographers petition in the United States
District Court to compel joinder and trilateral
arbitration has been denied because of the "vari-
ance" in the arbitration procedures of the respective
contracts.
Under these circumstances, we find that the
arbitration provisions of their respective contracts do
not provide an agreed-upon method for voluntary
adjustment of the dispute which could culminate in a
single determination binding on all parties. The
dispute here is between the two unions. Arbitration
under the Typographers contract would bind it and
the Company; arbitration under the Stereotypers
contract would bind only that union and the
Company. Therefore, it follows that in neither
instance would the second union, party to its own
contract, be affected.4 Accordingly, this matter is
3 Albany Printing Pressmen, Local 23 (Williams Press, Inc.), 166 NLRB
693, 695.
4 New York Mailers' Union No. 6, ITU, AFL-CIO (The New York Times
Company), 137 NLRB 665, 668-669.
5 Chairman Miller joins in this finding solely because of the holding of
the district court here , which has denied a petition to compel trilateral
arbitration, thus apparently stymieing an attempt to resolve this matter in
what could well have been a more expeditious manner than our NLRB
properly before the Board for determination under
Section 10(k) of the Act .5
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after
giving due consideration to all relevant factors. As
the Board has stated, its determination in a jurisdic-
tional dispute case is an act of judgment based upon
common sense and experience in the weighing of
these factors .6 The following factors are relevant in
making a determination of the dispute before us.
1. Certification and collective-bargaining
agreements
Neither of the labor organizations herein has been
certified by the Board as the collective-bargaining
representative for a unit of the Employer's employ-
ees.
The Employer has collective-bargaining agree-
ments with both the Stereotypers and the Typogra-
phers. The contract with the Stereotypers, effective
August 3, 1970, to August 5, 1973, covers employees
in the stereotype department, and includes classifica-
tions such as stereotypers, rubber and plastic plate
molders, etc. However, in a supplemental agreement
with the Stereotypers, executed December 7, 1971,
the Stereotypers was given jurisdiction over the offset
printing process, including such work as the Compa-
ny's manufacture of printing plates made by any
process necessary (photographic, electronic, mechan-
ical, chemical), and other associated functions. On
the other hand, the Employer has a contract with the
Typographers, effective from August 3, 1970, to
August 5, 1973, covering the composing room work,
including classifications such as hand compositors,
typesetting machine operators, makeup men, bank
men, proofpress operators, and proofreaders.
Under the foregoing circumstances, and in the light
of the fact that the Employer has expressly contract-
ed the new offset printing process to the employees
represented by the Stereotypers, we find that the
contractual aspect of this controversy favors the
assignment of the disputed work to the Stereotypers.
2. Employer practice
Although the Employer has assigned the disputed
processes provide . The Chairman appends this footnote only to make clear
that he does not subscribe to the view that a rival union may not properly be
interpleaded into a jurisdictional arbitration , nor does he wish to imply that
he would not defer to an arbitrator's award made after a claimant union
ignored an arbitrator's order requiring such a claimant to participate.
6 International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work to the Stereotypers, there is no past practice of
the Employer in connection with this work.
3. Industry and area practice
Since the record shows that area and industry
practice is mixed with respect to the disputed work, it
is found that this factor favors neither party.
4. Skills and experience
The record reflects that a given individual can be
trained to perform the disputed work. However, the
Stereotypers has maintained a school in Lamesa,
California, near San Diego, for the training of
employees in the offset printing process, and practi-
cally all of the Employer's stereotypers have complet-
ed the 6-week course. The Typographers recently
installed a training facility at Colorado Springs,
Colorado, for the training of its members in some
aspects of the offset printing process, but only a few
of the Employer's typographers have received such
training. Subsequent to the filing of the charges
herein, the Typographers installed a mobile training
unit on the Employer's premises to instruct its
members in some aspects of the offset process.
Under the circumstances, we do not find that the
factor of skills and experience favors either group.
5. Efficiency and economy
The Employer maintains that economy and effi-
ciency of operations requires the assignment of the
disputed work to the Stereotypers, and adds that it
has relied on such assignment in the planning and
construction of the new Mission Valley facility. The
Typographers does not claim the right to produce the
offset plates and hence assignment of the disputed
work to composing room employees would involve a
split in preliminary offset operations and the ineffi-
ciencies attendant in such a division. Accordingly,
we find that the assignment of the disputed work to
the Employer's employees represented by the Stereo-
typers is the more efficient and economical manner
of operation.
6. Gain or loss of employment
The record reflects that the job impact on employ-
ees in the composing room, who are represented by
the Typographers, will be minimal, regardless of
which group of employees is awarded the disputed
work. On the other hand, were we to assign the
disputed work to the employees in the composing
room , who are represented by the Typographers,
such assignment will result in a major and substantial
reduction in the workforce of the employees in the
stereotype department, who are represented by the
Stereotypers.
Under the foregoing circumstances , it is clear that
an award of the disputed work to the employees in
the stereotype department, represented by the Stereo-
typers, will have a much lesser impact , employment-
wise, in the Employer's plant.
Conclusions
Upon the entire record in this case , and after full
consideration of all relevant factors, we conclude
that the Employer's employees who are represented
by the Stereotypers are entitled to perform the work
in dispute . We reach this conclusion based upon the
Employer's assignment as reflected in the supple-
mental contract executed with the Stereotypers on
December 7 , 1971, the fact that the Stereotypers
possess the necessary skills and experience, the fact
that such assignment would result in greater efficien-
cy and economy , the substantial loss of employment
to the stereotypers should the award to that unit not
be confirmed and the fact that there are no factors
favoring composing room employees which would
warrant a reversal of the Employer 's assignment.
Accordingly, we shall determine the dispute before
us by awarding the work in dispute at the Employer's
new Mission Valley, California , facility, to those
employees who are represented by the Stereotypers,
but not to that Union or its members. Our present
determination is limited to the particular controversy
which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings , and the entire record in this
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
Employees of Union-Tribune Publishing Compa-
ny, who are represented by San Diego Stereotypers'
Union No. 82, affiliated with the International
Stereotypers and Electrotypers Union of North
America, are entitled to perform all work relating to
the camera for making negatives for the offset plates,
screens, reverses , and Veloxes, at the Employer's
Mission Valley, San Diego, California, facility.